Summary, May 12, 2009

About Nicholas BalaNicholas Bala B.A. (Toronto), LL.B. (Queen's), LL.M. (Harvard)
is a professor at Queen's University - Faculty of
Law, in Kingston, Ontario, Canada, specializing in Family and Children's
Law.

As of May, 2009, his work has been cited
by all levels of court in Canada , including 27 times by the Supreme Court of Canada.

Alienation cases have been receiving a great deal of public and
professional attention in the past few months in Canada. As with so many
issues in family law, there are two competing, gendered narratives
offered to explain these cases. Men’s rights activists claim that
mothers alienate children from their fathers as a way of seeking revenge
for separation, and argue that judges are gender-biased against fathers
in these cases. Feminists tend to dismiss alienation as a fabrication of
abusive fathers who are trying to force contact with children who are
frightened of them and to control the lives of their abused former
partners. While there is some validity to both of these narratives, each
also has significant mythical elements. The reality of these cases is
often highly complex, with both fathers and mothers bearing significant
responsibility for the situation.

Many high conflict separations are characterized by both parents
denigrating their former partners and failing to support their
children’s relationships with the other parent. While all children
suffer from such parental behaviour, only a minority of children become
“alienated” from a parent as a result of it. When a child resists visits
with a parent, all children in the family and both parents must be
assessed. Some cases involve emotionally abusive "pathological
alienation," caused by the conduct of an alienating parent and resulting
in a child having negative beliefs and feelings (such as anger, hatred
or fear) that are not consistent with the child's actual experience with
the rejected parent. In other cases, however, the child may be
"justifiably estranged" due to conduct of the rejected parent, such as
abuse or poor parenting. In some cases a child independently
decides to disengage with a parent, perhaps due to tensions with a step
parent.

We are
undertaking a study of reported Canadian cases between 1989 and 2008
dealing with claims of parental alienation. Key findings include:

Some of the key findings of the study:

A total of 145 cases were found in this period in which the court
made a decision about whether or not there was “parental alienation”,
with 18/34 in 1989-1998 having a finding of alienation, and 71/111 in
1999-2008 having a finding of alienation. Thus there was a
significant increase over time in the number of cases raising the issue
of parental alienation and in the number of cases in which there were
findings of alienation, though the increase in the rate of findings (53%
to 64%) was not statistically significant.

Although courts continue to
use the concept of “parental alienation,” starting in 2005, Canadian
judges began to recognize that the issue of whether this is a “syndrome”
is controversial, and that mental health professionals should resolve
this issue, not judges.

Mothers are twice as likely as fathers to
alienate children from the other parent, but this reflects the fact that
mothers are more likely to have custody or primary care of their
children; in only 2 out of 89 cases was a parent with only access able
to alienate a child from the other parent.

Fathers made more than three
times as many unsubstantiated claims of parental alienation as mothers,
but this too reflects the fact that claims of alienation (substantiated
and unsubstantiated) are usually made by access parents, who are usually
fathers.

In close to half the cases in which the court declined to make
a finding of alienation, it found that the child was understandably
estranged from the rejected parent due to abuse or poor parenting; in
about one quarter of the unsubstantiated cases the court found that the
child was not “alienated” from the other parent, but simply wanted less
contact. In 11 of the 56 cases where an unsubstantiated, the court
declined to order access of a parent who had made a claim
unsubstantiated claim of alienation; these were mainly cases of
justified estrangement, where there concerns about the safety or welfare
of the child in the care of that parent.

Court-appointed mental health
experts testified in 83% of these cases, and if they expressed a clear
opinion about whether or not there was alienation, the court agreed in
over 90% of the cases.

Party-retained experts testified in less than a
fifth of cases; judges are much less inclined to agree with these
experts; in only 2 cases did the court prefer the opinion of a
privately-retained expert to that of a court-appointed expert about
whether alienation occurred.

Where the court found parental alienation,
the most common response was to vary custody to either give the rejected
parent sole (47/89=53%) or joint custody(14/89=16%); whether the father
or the mother was found to be the alienating parent, there was not a
statistically significant difference in the rate of variation of
custody.

In more severe cases, courts may both change custody and suspend
contact with the alienating parent; this occurred in 9 out of 89 cases
(10%).

The court ordered counselling or therapeutic intervention in 37
of 145 cases in this study (26%). These orders were made both in
cases in which alienation was found, and in cases in which the court
rejected the claim of alienation. The most common orders were for
court ordered counselling for the children (19 cases) and for the entire
family (12 cases).

Thus, while there are gender differences in both rates of alienating
children (mainly by mothers) and in making unsubstantiated claims of
alienation (mainly by fathers), this reflects the fact that alienation
is almost always done by the parent with custody or primary care. There
is no evidence of gender bias in judicial responses to these cases.

Changes should be made in the family justice system to ensure that
alienation cases are addressed in a way that better meets the needs of
children, including:

Education programs for parents on the effects of separation on
children;

Early case management by one judge of high conflict family law
cases;

Early assessment by a court-appointed mental health professional;

Detailed court orders that are effectively enforced;

Prevention of delay
in resolving cases where alienation is alleged;
and

Provision of
effective counselling and support services for children and parents
involved in high conflict separations and cases where alienation issues
arise.

Although there is clearly a need for more research about the best
methods of intervention in alienation cases, there is a growing body of
literature that documents the long-term emotional harm to child from
being alienated from a parent.

Parental alienation cases draining court resources

Study says such cases should be moved out of court system, handled by
individual judges

The Globe and Mail
May 13, 2009

An escalation in parental alienation allegations is draining valuable
courtroom resources, a major study of 145 alienation cases between
1989-2008 concludes.

"Access problems and alienation cases - especially those which are
more severe - take up a disproportionate amount of judicial time and
energy," said the study, conducted by Queen's University law professor
Nicholas Bala, a respected family law expert.

"One can ask whether the courts should even be trying to
deal with these very challenging cases."
More..

Rick James Lohstroh, a doctor at UTMB, was fatally shot this summer,
apparently by his 10-year-old son.

ABC13 Eyewitness News, Houston, Texas, U.S.A.
Dec. 29, 2004

The 10-year-old Katy boy accused of murdering his father this summer
is now the face of an unofficial psychiatric disorder that may have lead
to his father's death.

Some psychiatrists call it Parental Alienation Syndrome and they say
that's why the son killed Doctor Rick Lohstroh last summer. The syndrome
is basically caused by a bitter parent who poisons a child against the other
parent, usually in cases of divorce.
More..

Nearly one in 10 girls and one in 20 boys say they have been raped or
experienced some other form of abusive violence on a date, according to
a study released Sunday at the annual meeting of the American Psychological
Association.
More..